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SINK OR Swim: the DEADLY CONSEQUENCES of PEOPLE SMUGGLING

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SINK OR Swim: the DEADLY CONSEQUENCES of PEOPLE SMUGGLING SINK OR SwIM: THE DEADLY CONSEQUENCES OF PEOPLE SMUGGLING I. INTRODUCTION Deep in the maze of teeming bazaars to the north of Peshawar,where they sell stolen televisions, large blocks of hashishand cheap Kalashnikov assaultrifles, is a new breed of travel agents. Their business is discreet, effective and illegal, and the profits are enormous.' The kachakbar greet Afghan refugees who stream across the border at Khyber Pass 3 into the refugee camps4 promising a new life in the West.5 In an interview with a British journalist, smugglers describe how they inform those they smuggle to say that they come from a part of Afghanistan ruled by the Taliban,6 and while most of these people are genuine refugees some of them are not even Afghans.7 8 "For as long as there have been people there has been migration;" 1. Rory McCarthy, et al., Asylum Crisis:The Voyage: Hazardous,Long and Costly: the Refugees' Lonely Odyssey: Only the Smugglers are Certain Winners in the Escape Business, THE GUARDIAN, Sept. 1, 2001, at A4. In the past two decades six million Afghan people have fled their country to escape war. See id. Hundreds of thousands of Afghans continue to flee after a vicious drought in the past few years, and the rise of the Taliban regime. See id. 2. Kachakbar translates to refugee smuggler. See id. 3. "Khyber Pass" ENCYCLOPEDIA BRITANNICA ONLINE, at http://search.eb.comlbolltopic?eu=46429&sctn=l&pm=l (last visited Nov. 17, 2001). The Khyber Pass is the most important pass connecting Afghanistan and Pakistan. See id. Khyber Pass extends northwest through the Safid Kuh mountain range near Peshawar, Pakistan for about fifty-three kilometers to Kabul, Afghanistan. See id. For centuries the Khyber Pass was used to invade India. See id. 4. See BBC NEWS, Tom Housden, Tampa Case Highlights Afghan Crisis, Sept. 4, 2001, athttp://news.bbc.co.uk/hi nglishlworld/south-asianewsid-1525000/1525264.strL The people in refugee camps are reduced to an underclass, thus some turn to begging and prostitution for survival. See id. 5. See McCarthy, et al., supra note 1, at A4. 6. See The TalibanandAfghanistan: ImplicationsforRegional Security and Optionsfor International Action, UNITED STATES INSTITUTE OF PEACE, available at http:llwww.usip.orgloc/sr/sr-afghan.htnl (1998). "rhe Taliban, whose name means 'students,' have their roots in the Pakistan-based seminaries established for Afghan refugees during the Soviet occupation." Id. The Taliban practice a very strict version of Islam inflicting it upon all citizens of Afghanistan. See id. 7. See McCarthy et al., supra note 1, at A4. Smugglers earn a forty percent profit for each smuggled person. See id. 8. AdamGraycar& Rebecca Tailby, PeopleSmuggling: National Security Implications, Australian Defence College Canberra, Aug. 14, 2000, available at http:llwww.aic.gov.au/conferences/other/smuggling.pdf, at 1. IND. INT'L & COMP. L. REv. [Vol. 12:2 however, illicit illegal migration continues to rise at an alarming rate.' The International Organization for Migration' ° estimates that the current level of illegal migrants is four million per year." As these refugees so fear for their lives that they are forced to leave the only home they have ever known, they turn to the people smuggler for transportation.' 2 The economic and physical cost of travel is overwhelming, 3 while the length of the journey is far from 9. See ICC Commercial Crime Services, Warning to Ship Agents Against Conspiracies to Ship Illegal Immigrants, Sept. 26, 2001, at http://www.iccwbo.org/ccs/newsarchivesl 2000fillegaliummigrants.asp. The ICC Commercial Crime Series is a division of the International Chamber of Commerce. See id. The ICC is the world business organization that promotes an open and international trade, the investment system, and the market economy. See id. 10. See International Organization for Migration (IOM) home webpage, at http://www.iom.int/ (last visited Feb. 15, 2002). The IOM is the leading international organization working with migrants and governments providing human responses to migration challenges. See id. Established in 1951, the IOM aids in resettling European migrants and refugees. See id. IOM Member States as of Nov. 30, 2001 are: Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Bangladesh, Belgium, Belize, Benin, Bolivia, Bulgaria, Burkina, Faso, Canada, Cape Verde, Chile, Colombia, Congo, Costa Rica, COte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Finland, France, Gambia, Georgia, Germany, Greece, Guatemala, Guinea, Guinea-Bissau, Haiti, Honduras, Hungary, Iran (Islamic Republic of), Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Madagascar, Mali, Morocco, Netherlands, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Senegal, Sierra Leone, Slovakia, Slovenia, South Africa, Sri Lanka, Sudan, Sweden, Switzerland, Tajikistan, Thailand, Tunisia, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Yemen, Yugoslavia (Fed. Rep. of), and Zambia. See Members and Observers, Feb. 16, 2002, at http://www.iom.intlenlwho/mainmembers.shtml. The following are Observer States: Afghanistan, Belarus, Bhutan, Bosnia and Herzegovina, Brazil, Cambodia, China, Cuba, Estonia, Ethiopia, Ghana, Holy See, India, Indonesia, Ireland, Jamaica, Kazakhstan, Malta, Mexico, Mozambique, Namibia, Nepal (the Kingdom of), New Zealand, Papua New Guinea, Republic of Moldova, Russian Federation, Rwanda, San Marino, Sao Tome and Principe, Somalia, Spain, The former Yugoslav Republic of Macedonia, Turkey, Turkmenistan, Ukraine, Viet Nam, Zimbabwe. See id. International Governmental Organizations Holding Observer Status include: United Nations; International Labour Organisation; Food and Agriculture Organization of the United Nations; United Nations Educational, Scientific and Cultural Organization; World Health Organization; International Bank for Reconstruction and Development; International Maritime Organization; United Nations Industrial Development Organization; Council of Europe; Organisation for Economic Co-operation and Development; European Union; Organization of American States; Inter-American Development Bank; Italian- Latin American Institute; International Centre for Migration Policy Development; Community of Portuguese Speaking Countries; Organization of African Unity; A organisation Internationale de la Francophonie; Asian-African Legal Consultative Committee; International Committee of the Red Cross; Union du Maghreb Arabe. See id. 11. See id. 12. See BBC NEWS, William Horsley, Analysis: Solving the Refugee Problem, Sept. 3, 2001, at http://news.bbc.co.uk/hi/english/world/newsid_152300011523897.stm. 13. See Glenn Mitchell & Jim Dickins, Trading in Tragedy, HERALD SUN, Oct. 27,2001, at 21. Often the people being smuggled are highly educated middle class professionals who sell every asset they own in order to pay between $16,000 and $20,000 for travel. See id. 2002] SINK OR SWIM swift."'4 But, for $12,000 and two passport-sized photographs, a smuggler will sign a contract guaranteeing travel from Pakistan to Australia.'5 Similarly, the 433 people aboard the MV Tampa,' 6 who for ten days after being rescued at sea became the center of an international controversy between Norway, Indonesia, and Australia, faced this dark beginning to their own voyage." This Note examines the Australian government's management of the MV Tampa incident to determine the effect its decision will have on Australia's battle against people smuggling. In addition, this Note analyzes the people smuggling epidemic in Europe and global initiatives to stop people smuggling. Part II focuses on the effects of people smuggling on refugees who are seeking asylum in Australia. In Part III, the Note addresses Australia's response to increased people smuggling. Part IV analyzes the MV Tampa incident. The Note addresses, in Part V, effects of the Australian court's decision, including the continuing arrival of boat people 8 to Australia, and Australia's policy of transporting the boat people to other Pacific nations. Finally in parts VI through VII, this Note examines Europe's difficulties with people smuggling and global initiatives to stop people smuggling. IH. PEOPLE SMUGGLING: A ROADBLOCK TO REFUGEES A. People Smuggling in General The organized illegal movement of groups or individuals across international borders, usually for payment, is commonly known as people smuggling. 9 The smuggling2' and trafficking2 of human beings is increasing throughout the world, and is "exacerbated" in size and seriousness by the 14. See McCarthy, et al., supra note 1, at A4. 15. See id. The smuggler's goal is to be picked up by authorities at a remote territorial outpost, Christmas Island or Ashmore Reef, instead of mainland Australia. See id. 16. See discussion infra Part IV. 17. See ABC NEWS, Leela Jacinto, Forced Entry Troops Board Illegals Ships, International Concern Mounts, Sept. 2, 2001, at http:labcnews.go.comlsectionslworld/ DailyNews/boatpeople_2_010829.html. 18. See Josh Briggs, Sur Place Refugee Status in the Context of Vietnamese Asylum Seekers in Hong Kong, 42 AM. U.L. REv. 433, 437 (1993). The term boat people was derived in the 1970's when asylum seekers secretly and illegally departed Vietnam on crowded, tiny, unseaworthy boats in search of asylum. See id.
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